FOIA Update,
Vol. VI, No. 1
1985

Can an agency supplement its rationale for denying a fee waiver request after the requester brings suit?

No, not likely. The FOIA's fee waiver provisions vest federal agencies with discretionary authority to determine when fees should not be charged. See 5 U.S.C. § 552(a)(4)(A). Accordingly, unlike with other FOIA determinations where federal courts conduct de novo review to decide whether an agency action was proper, the appropriate standard of judicial review in fee waiver cases is the Administrative Procedure Act ("APA") standard of whether an agency abused its discretion or its decision was arbitrary and capricious or otherwise not in accordance with law; the scope of judicial review is correspondingly limited to the agency's administrative record. See, e.g., Eudey v. CIA, 478 F. Supp. 1175, 1176 (D.D.C. 1978); accord 5 U.S.C. § 706(2)(A). Hence, because under the APA "courts may not accept . . . post hoc rationalizations for agency action," Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168-69 (1962), an agency cannot anticipate being able to supplement its fee waiver denial rationale after the commencement of litigation. Indeed, in Allen v. CIA, Civil No. 81-2543, slip op. at 12 (D.D.C. Aug. 24, 1984), a court recently rejected additional reasons advanced by an agency to justify a fee waiver denial and pointedly considered only the rationale contained in the agency's administrative responses. Therefore, agencies should strive to make as thorough an adniinistrative record as reasonably possible in their fee waiver denials. Specifically, this should include the careful consideration of all reasons advanced by the requester in support of the requested waiver, together with an analysis of the criteria set forth in the Department of Justice's 1983 fee waiver guidelines (see FOIA Update, Jan. 1983, at 3-4); a full memorialization of all grounds for the denial should be provided to the requester.

Can the identities of FOIA requesters be withheld under the FOIA?

No, not as a general rule. As one court has held, "FOIA requesters . . . have no general expectation that their names will be kept private." Agee v. CIA, 1 GDS ¶ 80,213 at 80,532 (D.D.C. 1980). In fact, in most cases the release of the name of a FOIA requester would not cause even the minimal invasion of privacy required to trigger the balancing tests of Exemptions 6 and 7(C). See Stauss v. IRS, 516 F. Supp. 1218, 1223 (D.D.C. 1981); cf. National Western Life Insurance Co. v. United States, 512 F. Supp. 454, 460-61 (N.D. Tex. 1980); compare Wine Hobby USA, Inc. v. IRS, 502 F.2d 133, 137 (3d Cir. 1974). It would take an extraordinarily rare and compelling situation for the mere identification of a person or entity as a FOIA requester of particular records to rise to the level of implicating a privacy interest (or, less likely, a commercial interest) protectible under the FOIA.

On the other hand, any personal information about an individual FOIA requester -- such as his or her home address, for example -- should be protected under Exemption 6 absent a particularly compelling public interest in its disclosure. Cf. American Federation of Government Employees v. United States, 712 F.2d 931, 932-33 (4th Cir. 1983) (home addresses of federal employees found properly withheld under Exemption 6). But see Stauss v. IRS, 516 F. Supp. at 1223. Similarly, the fact that an individual has made a first-person request for access to his personal file under the Privacy Act of 1974, 5 U.S.C. § 552a, ordinarily should be protectible under Exemption 6. Therefore, a FOIA request for an agency list of Privacy Act requesters should be denied on that basis, and any FOIA requester seeking access to any record reflecting whether a particular individual has exercised his or her Privacy Act rights should be given a "neither confirm nor deny" response on that same basis. Cf. Rushford v. Civiletti, 485 F. Supp. 477, 481 n.13 (D.D.C. 1980), aff'd mem., 656.F.2d 900 (D.C. Cir. 1981).

Can a federal agency ever make a FOIA request for the records of another agency?

No, not directly. According to the FOIA's general disclosure provision, 5 U.S.C. § 552(a)(3), all records not covered by the specific disclosure provisions of 5 U.S.C. § 552(a)(1) or (a)(2), and not exempted by 5 U.S.C. § 552(b), must be disclosed upon receipt of a proper request from "any person." The FOIA's definition of "person," incorporated from the Administrative Procedure Act, encompasses "an individual, partnership, corporation, association, or public or private organization other than an agency." 5 U.S.C. § 551(2) (emphasis added). See 5 U.S.C. §§ 551(1), 552(e); see also Federal Open Market Committee v. Merrill, 443 U.S. 340, 360 (1979) (holding that 5 U.S.C. § 551(2) excludes federal agencies from the meaning of "person" in the context of Exemption 4). Therefore, information requests from agencies within the executive branch of the federal government cannot be considered to be formal FOIA requests.

This conclusion holds particular significance for any agency request for disclosure of Privacy Act-protected information in light of the D.C. Circuit Court of Appeals' decision in Bartel v. FAA, 725 F.2d 1403 (D.C. Cir.), reh'g en banc denied, No. 82-2473 (D.C. Cir. Mar. 23, 1984). In Bartel, the D.C. Circuit narrowly interpreted the "FOIA disclosure" exception to the Privacy Act's general disclosure prohibition, 5 U.S.C. § 552a(b)(2), to permit disclosure of nonexempt information "[o]nly when the agency is faced with a FOIA request." 725 F.2d at 1412. The Office of Information and Privacy subsequently advised all federal agencies not to disclose Privacy Act-protected information in reliance upon this "FOIA disclosure" exception unless it is subject to an actual FOIA request. See FOIA Update, Summer 1984, at 2. Because information requests received from other federal agencies technically are not FOIA requests, it must follow that agencies handling Privacy Act-protected information cannot rely upon 5 U.S.C. § 552a(b)(2) to disclose such information in response to such requests. However, a FOIA request received from an employee of another federal agency, even one acting in his official capacity, would be a request from a "person" and would therefore satisfy both the technical requirement of the FOIA and the artificially restrictive rule of Bartel.

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